Corporation Counsel,
in theSuperior Court of the District of Columbia,
Defendant’s Supplemental Brief on the Issues of Standing and the Applicability
of Quo Warranto to the Instant ProceedingsJune 13, 2003

DEFENDANT'S SUPPLEMENTAL BRIEF ON THE ISSUES OF STANDING AND THE APPLICABILITY OF QUO WARRANTO TO THE INSTANT
PROCEEDINGS

Introduction

Defendant Anthony A. Williams, by and through counsel and
pursuant to the Court's directive, respectfully submits a supplemental
brief which addresses the issues of standing and the applicability of
quo warranto to the instant proceedings. Specifically, it discusses, at
the Court's request, the general question of standing in a
constitutional sense and, more specifically, in the context of the quo
warranto statute in the District of Columbia, § 16-3521 et seq. of the
Official D.C. Code.

In the context of the instant litigation, the question of
standing is a relatively straightforward: namely,

(1) does the Council of the District of Columbia
("Council") have standing to bring the lawsuit it has filed;
and

(2) does it have standing under the District's quo
warranto statute to seek a writ as a "person interested"
within the meaning of the statute (in the event that the Corporation
Counsel declines to do so at its request). See, §16-3523.

The answers to these specific questions are provided
below. However, they raise a more fundamental concern that has already
been articulated by the defendant that is, the Mayor's contention,
well-supported by applicable law, that the only method by which the
Council can seek redress is through the quo warranto proceeding. So, the
defendant's brief also discusses the exclusive applicability of the quo
warranto statute to these proceeding within the parameters of the
Court's request for supplemental pleadings.

I. Available Caselaw Indicates That the
Council Does Not Have Standing to Bring the Instant Lawsuit As Pleaded.

Generally, the standing doctrine that is applied in both
the federal courts and the local District of Columbia courts involves
"a blend of constitutional requirements and prudential
considerations."1 Valley Forge Christian Coll. v. Americans United
for Separation of Church and State, Inc., 454 U.S. 463, 70 L.Ed. 2d 700,
102 S.Ct. 752 (1982). With respect to the constitutional requirements,
the "case or controversy" requirement of Article III of the
United States Constitution mandates that a party invoking the federal
court's authority show: (1) that he or she has suffered some actual or
threatened personal injury as a result of the defendant's putatively
illegal conduct, (2) that the injury may fairly be traced to the
challenged action, and (3) that a favorable decision will likely redress
the injury. Raines v. Byrd, 521 U.S 811, 138 L.Ed.2d 849, 117
S.Ct. 2312 (1997); Valley Forge, 454 U.S. at 472. The Supreme
Court explained that "Art. III limit[s] the federal judicial power `to those disputes
which confine federal courts to a role consistent with a system of separated powers and which
are traditionally thought to be capable of resolution through the judicial
process."' Id. (citing Flast v. Cohen, 392 U.S. 83, 97
(1968)).2

In applying the first element above - the personal injury
requirement - the Supreme Court has "consistently stressed that a
plaintiffs complaint must establish that he has a `personal stake' in
the alleged dispute, and that the alleged injury suffered is
particularized as to him." Raines, 521 U.S. at 818. In Raines, six
members of Congress filed suit challenging the Line Item Veto Act, which
gave the President the power to cancel items in certain spending and tax
benefit measures. The suit was filed before the President had exercised
his cancellation authority, and the Supreme Court attached some
importance to the fact that the members were not authorized to represent
their respective Houses of Congress in this action. The Supreme Court
stated that the members' claim of standing is based on a loss of
political power, and not the loss of any private right. The Court held
that the members did not have "a sufficient `personal stake' in
this dispute and have not alleged a sufficiently concrete injury to have
established Article III standing." Id. at 829.

Conversely, in Clinton v. New York, 524 U.S. 417, 141
L.Ed.2d 393, 118 S. Ct. 2091 (1998), the President exercised his
cancellation authority and waived, among other things, the Federal
Government's statutory right to recoupment of as much as $2.6 billion in taxes that the State of New York had levied against
Medicaid providers. The City of New York claimed they had been injured,
filed separate actions against the President and other officials
challenging the cancellations.

The Supreme Court distinguished the posture of this case
from Raines, not only because the President had now exercised his
cancellation authority, thereby removing any concern about the ripeness
of the dispute, but more importantly because the parties alleged a
"personal stake" in having an actual injury redressed rather
than an "institutional injury" that is "abstract and
widely dispersed." Thus, the Supreme Court found that the
plaintiffs did have standing and subsequently struck down the line item
veto. Notwithstanding an opposite holding in Clinton, it can easily be
distinguished from Raines as it illustrates the stringent standards-even
in modem jurisprudence-under which certain plaintiffs (like the Council)
can have standing to challenge the executive branch of the government in
situations similar to these.

The members of the Council have sued in their official
capacity a well as "District residents and taxpayers." It is
doubtful, under Raines and Clinton, that the members' institutional and
official interest is sufficient to give them standing in the current
dispute. The remaining question is whether the members have standing as
taxpayers. In Flast v. Cohen, 392 U.S. 83 (1968), the
taxpayer--plaintiffs sought to enjoin the expenditure of federal funds
under the Elementary and Secondary Education Act of 1965, which they
alleged were being used to support religious schools in violation of the
Establishment Clause. The Supreme Court developed a two-part test to
determine whether the plaintiffs had standing to sue. First, because a
taxpayer alleges injury only by virtue of his liability for taxes, the
Court held that "a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional
power under the taxing and spending clause of Art. I, §8, of the
Constitution." Id. at 102. Second, the Court required the taxpayer
to "show that the challenged enactment exceeds [***714] specific
constitutional limitations upon the exercise of the taxing and spending
power and not simply that the enactment is generally beyond the powers
delegated to Congress by Art. I, §8." Id. at 102-103.

The plaintiffs in Flast satisfied this test because
"[their] constitutional challenge [was] made to an exercise by
Congress of its power under Art. I, § 8, to spend for the general
welfare," id. at 103, and because the Establishment Clause, on
which plaintiffs' complaint rested, "operates as a specific
constitutional limitation upon the exercise by Congress of the taxing
and spending power conferred by Art. I, § 8," id. at 104. However,
the Court reaffirmed that the "case or controversy" aspect of
standing is unsatisfied "where a taxpayer seeks to employ a federal
court as a forum in which to air his generalized grievances about the
conduct of government or the allocation of power in the Federal
System." Id. at 106.

Unlike Flast, the Council is not alleging any specific
constitutional violation, but allege only that the defendant is not
enforcing what they believe to be a valid law. This allegation is
nothing more than a "generalized grievance about the conduct of
government or the allocation of power" in the District government.
It is an insufficient basis upon which to obtain standing in this
matter. Alternately, the Council's actions, in light of the record of
its attempts to remove the incumbent Inspector General, can reasonably
be viewed at its attempt to preserve its own political power-another
inadequate grounds for having the standing to sue in this instance.

II. Because the District's Quo Warranto
Statute Incorporates the Requirement for Standing, the Plaintiff Members
of the Council Cannot Obtain a Writ of Quo Warranto Against the
Incumbent Inspector General, Charles C. Maddox

We have already concluded that the plaintiff members of
the Council lack standing to bring an equitable action for declaratory
relief against the Mayor, for the purpose of obtaining ouster of Mr.
Maddox as Inspector General. The remaining issue is whether the
plaintiffs nevertheless might be able to invoke the legal remedy of quo
warranto to obtain such ouster, even if they lack standing in equity. We
believe the standing requirement would also apply in a quo warranto
proceeding, thus barring them from quo warranto relief.

We need not here restate the provisions of the District's
quo warranto statute, D.C. Official Code § 16-3521 et seq. (2001),
which are fully set out in the June 11, 2003 memorandum of points and
authorities in support of defendant's motion to dismiss the complaint
or, in the alternative, for summary judgment. Those provisions afford an
adequate remedy at law for qualifying persons to seek the ouster of a
public official on the ground that the official lacks lawful title the
office he or she holds. It follows that, because an adequate remedy at
law exists, equitable relief, including the remedy of a declaratory
judgment, should not lie in this case on behalf of any person who
qualifies to bring a writ of quo warranto. See, e.g., United States ex
rel. Noel v. Carmody, 148 F.2d 684, 685 (D.C. Cir. 1945).

Additionally, in construing District statutory law,
courts follow the rule of construction known as "expressio unius
est exclusio alterius" (which means that the express provision of
one thing should be understood as the exclusion of other related
things). Except where there is some strong indication of a contrary
legislative intent,

[w]here a form of conduct, the manner of its performance
and operation and the persons and things to which it refers are
designated, there is an inference that all omissions should be
understood as exclusions. `When what is expressed in a statute is
creative, and not in a proceeding according to the common law, it is
exclusive, and the power exists only to the extent plainly granted.
Where a statute creates and regulates, and prescribes the mode and names
the parties granted right to invoke its provision, that mode must be
followed and none other, and such parties only may act." The method
prescribed in a statute for enforcing the rights provided in it is
likewise presumed to be exclusive.

See 2A Sutherland Statutory Construction, § 47.23, pp.
216-217 (5th, ed. 1992) citing, inter alia, National Rifle Association
v. Potter, 628 F. Supp. 903, 909 (D.D.C. 1986) and McCray v. McGee, 504
A.2d 1128, 1130 (D.C. 1986). Here, while the writ of quo warranto was
recognized by the common law before enactment of the District's quo
warranto statute, the latter essentially perpetuates the common law
remedy. See, e.g. District of Columbia v. Tucker, Super. Ct. D.C. Civil
No. 5512-77 (December 13, 1977), 106 Wash. L. Rptr. 41 (January 9,
1978), p. 42. Therefore, the procedures in the District's quo warranto
statute should be construed as being the exclusive procedures available
at law - as opposed to equity - for seeking and obtaining the ouster of
a public official such as the incumbent Inspector General. See also id.,
106 Wash. L. Rptr. at 43.

As defendant pointed out in the June 11, 2003 memorandum,
the District's quo warranto statute contains a two-step procedure
whereby members of the Council could seek the ouster of an appointed
District official like Inspector General Maddox. First, they could
request the local United States Attorney or the Corporation Counsel to
institute a quo warranto proceeding for that purpose, or obtain the
consent of one of these officers to sue in their name on relation of the
members of the Council. In the seminal decision under the parallel quo warranto statute for
removing federal, officials, Newman v. United States ex rel. Frizzell,
238 U.S. 537 (1915), the Supreme Court held that the decision of the
named counterpart prosecuting officers there - the United States
Attorney General or a United States Attorney, see D.C. Official Code §
16-3501 et seq. - to seek a writ of quo warranto was discretionary and
not reviewable by the courts. 238 U.S. at 546. Given the parallel
language and structure of the federal and District quo warranto
statutes, the decision of the Corporation Counsel not to seek a writ of
quo warranto against Mr. Maddox is discretionary and not subject to
judicial review.

Under the second step of the District's quo warranto
statute, having failed to obtain the consent of the local United States
Attorney or the Corporation Counsel for a quo warranto proceeding on
relation of the members of the Council, the latter have the option to
apply for leave of this Court to issue the writ, which is in the nature
of an order to show cause. However, to qualify for such leave of Court,
each plaintiff member of the Council must satisfy the express statutory
requirement that they be an "interested person."

In Newman, supra, the plaintiff was a taxpayer who
instituted quo warranto proceedings against an officer of the District
government, seeking the officer's ouster. The trial court had held that
the taxpayer was an "interested person" under the predecessor
statute, which in relevant particulars is identical to the current quo
warranto statute for removing federal officers. On appeal, the Supreme
Court reversed, holding that: (1) the taxpayer was not permitted to use
the name of the government in quo warranto proceedings; (2) the rule was
the same whether the municipal official was elective or appointed; (3)
the taxpayer must have a personal interest in the office itself before the taxpayer could seek a writ of quo warranto;
and (4) lacking such a personal interest, the taxpayer lacked standing
to bring the suit.

The Court in Newman recognized that every citizen and
taxpayer is interested in the enforcement of law, and in having only
qualified officers execute the law. But the Court also recognized that
that general interest is not a private interest but a public one, which
can only be vindicated by public law enforcement officers. Id. at 547.
The Court noted that, if the general public interest were sufficient to
authorize citizens and taxpayers to invoke quo warranto, then a public
officer might, from the beginning to the end of his or her term, be
harassed with proceedings to try his or her title to office. Id. at 548.
See also id. at 546 ("[T]here are so many reasons of public policy
against permitting a public officer to be harassed with litigation over
his right to hold office, that the [District] Code not only does not
authorize a private citizen, on his own motion, to attack the
incumbent's title, but it throws obstacles in the way of all such
private attacks.") The Newman Court concluded that the only
"interest which will justify such a proceeding by a private
individual must be more than that of another taxpayer. It must be 'an
interest in the office itself and must be peculiar to the
applicant.'" Id. at 550. Examples of such an "interest"
that the Court identified are (1) a case where the quo warranto
plaintiff had been unlawfully ousted from the same position and (2) a
case under the civil service law in which this the relator would have an
interest. Id. at 551.

The leading local decision construing the quo warranto
statute for removal of District officers appears to be United States ex
rel. Noel v. Carmody, 148 F.2d 684 (D.C. Cir. 1945). This decision is
the main local court decision on which Superior Court Judge Harold
Greene relied in District of Columbia v. Tucker, which is cited above.
In contrast to the Supreme Court's interpretation in Newman,
supra, of the quo warranto statute for removal of federal officers, the
U.S. Court of Appeals in Carmody was unwilling - despite the parallel
language and structure -- to construe the term "interested
person" as narrowly for purposes of the quo warranto statute
governing removal of District officers.

Carmody involved a relator whose interest was in removing
the person who held the office of President of the Bar Association of
the District of Columbia, on the ground that the President's election to
that office was in violation of the by-laws of the Association. (The
local quo warranto statute governs removal not only of District
government officers but also of officers of a private domestic
corporation.) The Carmody relator's sole interest was his membership in
the Bar Assocation of the District of Columbia. The respondent in
Carmody argued that, under the quo warranto statute governing removal of
District officers, a court had no jurisdiction to issue a writ of quo
warranto against an officer of a private corporation except in a case
where the relator himself or herself was seeking the same office, citing
the Supreme Court's decision in Newman, supra.

The U.S. Court of Appeals in Carmody disagreed, noting
that, to sustain the broad proposition that a writ of quo warranto
cannot issue against an officer of a private corporation on complaint of
one of its members would leave the members without an effective remedy
in most cases of illegal corporate elections. Id. at 684. The U.S. Court
of Appeals distinguished Newman on the ground that the latter decision
involved merely taxpayers who were suing to vindicate the public
interest, whereas in Carmody, the relator was suing to vindicate a
specific personal interest as a member of an association. Id. at 685. However, the holding of the Court in
Carmody
is nevertheless consistent with the holding in Newman that a relator
must have a sufficient personal stake to establish the existence of
standing. Accordingly, because the plaintiff members of the Council lack
standing here to challenge Mr. Maddox's title to the office of Inspector
General, they fail to qualify as persons who may invoke the process for
obtaining a writ of quo warranto under D.C. Official Code § 16-3521 et
seq.

Conclusion

From the foregoing, it is apparent that the Council lacks
standing, generally and in the context of the quo warranto statute, to
seek to enforce their legislation and remove the incumbent Inspector
General from office. However, the defendant acknowledges that this
leaves the Council in a difficult position because they appear to be
without any judicial recourse. However, it is undeniable that the quo
warranto proceeding is the only method available to them to seek
redress.

CERTIFICATE OF SERVICE

I hereby certify that a copy of the Defendant's
Supplemental Brief On The Issues Of Standing And The Applicability Of
Quo Warranto To The Instant Proceedings was delivered electronically via
email and by hard copy on this 13th day of June, 2003 to:

Charlotte Brookins-Hudson, Esquire
General Counsel to the Council of the District of
Columbia
1350 Pennsylvania Avenue, N.W. Suite 4
Washington, DC 20004

Arabella W. Teal

1. Although Congress did not establish the local District
of Columbia courts under Article III of the Constitution, the D.C. Court
of Appeals applies the same constitutional and prudential requirements
to its cases, and will look to federal standing jurisprudence in
enforcing these requirements. Friends of Tilden Park, Inc. v. District
of Columbia, 806 A.2d 1201 (D.C. 2002).

2. With respect to the prudential considerations that bear
on the question of standing, the Supreme Court has held that "the
plaintiff generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests of
third parties." Id. In addition, even when the plaintiff has
alleged an injury capable of redress by the courts, the Supreme Court
has refrained from adjudicating "abstract questions of wide public
significance" which amount to "generalized grievances".
Finally, the Supreme Court has required that the plaintiffs complaint
fall within "the zone of interests to be protected or regulated by
the statute or constitutional guarantee in question. Id. at 475.